Weait, M. (2001) 'Taking the Blame: Criminal Law, Social Responsibility and the Sexual Transmission of HIV' Journal of Social Welfare and Family Law, 23(1): 441-457

Weait, M. (2001) 'Taking the Blame: Criminal Law, Social Responsibility and the Sexual Transmission of HIV' Journal of Social Welfare and Family Law, 23(1): 441-457
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  Journal of Social Welfare and Family Law 23(4) 2001: 441–457 Taking the blame: criminal law,social responsibility and thesexual transmission of HIV Matthew Weait Lecturer in Law, The Open University  Abstract: Traditional criminal law scholarship in the eld of offences against the person fails adequately to problematize core concepts,such as responsibility,harm and causation. This article considers different ways in which we might think about such concepts,by exploring questions relating to responsibility for the sexual transmission of HIV. It is argued that the complex meaningsassociated with HIV transmission are inadequately captured if we think of it simply as a corporeal harm inicted on one person by another,and that lawyersshould be open to alternative interpretations of the harm which transmissionrepresents. Keywords: AIDS,crime,HIV,liability,responsibility,transmission Introduction One of the most important matters with which criminal lawyers are concernedis that relating to the attribution of responsibility. Put simply:who,under whichconditions,should be criminally liable for what? Using a case study – the sexualtransmission of HIV – this article argues that the conventional approach toanswering these questions is,at least in certain respects,unduly restrictive.While the necessity of analysing the law as it is in fact applied in the courtsremains an important project,this is not enough. One of the obligationsof criminal legal scholarship,and of teaching,is surely to challenge the wayin which we understand the categories and modes of argument deployed indetermining responsibility,and to explore new ways of conceptualizing andunderstanding this.This challenge can be met in two ways. The rst,which may perhaps becharacterized as ‘critical exegesis’,seeks to locate the law within a framework of values and to evaluate the extent to which there is a match,or t,betweenthe two. The extent to which the law falls short of,or expresses,those valuesthen provides a basis on which the law may be criticized. There have,over thelast decade or so,been a number of authors who have adopted this approach in  Journal of Social Welfare and Family Law ISSN 0141-8033 print/ISSN 1469-9621 online  ©  2001 Taylor & Francis Ltd 10.1080/09649060110079837  their discussions of criminal law. Perhaps the exemplar is Andrew Ashworth,whose Principles of Criminal Law has,in a relatively short period,become afoundational text for undergraduate students of the subject (Ashworth,1999).He rightly points out that the traditional texts of criminal law have tended todevote relatively little attention to the ‘rightness or wrongness’of criminalizingparticular conduct,and have been more concerned with identifying theconditions and scope of liability. In contrast,part of his purpose is: to identify some principles that may tell for or against making some conductcriminal, and to argue that some reasons are good and some bad. Although it is truethat the frontiers of criminal liability are not given, but are historically contingent,it remains important to strive to identify the interests that warrant the use of thecriminal law and to rene notions such as harm which play so prominent a part evenin political discussions of these questions.(1999: 23–4) There is,then,within the approach adopted by Ashworth an explicitly normativeagenda,one which centres on the idea that before conduct may legitimately becriminalized,some principled justification is necessary. Thus (dependingon one’s own particular view),it is legitimate for the state to proscribe thatconduct which offends against,for example,the principles of individualautonomy and collective welfare (subsumed by Ashworth within a principle of minimum criminalization) or social defence. Similarly,the legitimate rangeof criminal law may be determined by reference to such general principlesas non-retroactivity,maximum certainty and the strict construction of penalstatutes.This way of discussing the criminal law has many advantages,principalamong which is that it provides the person wishing to make sense of its disparaterules and principles,with a coherent analytical framework informed by theliberal political values articulated in the law itself. Paradoxically,however,theapproach may be criticized for doing just that. For in seeking to articulate aframework of values against which to critique the law,the foundationalcategories and assumptions which make up the law itself are left relativelyundisturbed and uncontested (Norrie,1993). The question of whether we shouldcriminalize those who transmit HIV to others in a sexual context for the actof transmission 1 provokes,I think,just such a disturbance. And exploringthe contours of that disturbance provides us with a second approach tounderstanding the way in which law’s (and lawyers’) assumptions both limit therange of interpretations which may be placed on human behaviour,andreproduce a socially inadequate approach to responsibility. Thinking about HIV/AIDS HIV/AIDS 2 has,in less than two decades,become a complex social phenom-enon. It has become so through diverse and ever-proliferating interrogation– by scholars in the elds of history (Fee and Fox,1988; Grmek,1990; Berridge,1996; Haver,1996),sociology (Kayal,1993; Epstein,1996),politics (Altman, Journal of Social Welfare and Family Law 23(4) 2001442  Criminal law and transmission of HIV 1986,1994),philosophy (Almond,1990; Düttmann,1996) and cultural theory(Crimp,1988; Boffin and Gupta,1990; Patton,1985,1990; Watney,1994;Erni,1994,Waldby,1996),by writers and artists (Crimp,1990; Sontag,1991),and – importantly – by those living and working with HIV/AIDS (Kramer,1995; Moore,1996; Yingling,1997). As a result of such interrogation,ourunderstanding of the meanings and experience of both illness and mortality,and of empowerment and survival,have been vastly enriched.There is,however,a notable gap in that literature,which explores the way inwe should think about HIV/AIDS and its meanings. Although lawyers (bothacademic and practising) have been active in writing about the practical legaldifculties those living with HIV/AIDS may experience and,to a lesser extent,the difculties law has when confronted by those living with HIV/AIDS,therehas been relatively little theoretical (as distinct from doctrinal) engagementby them. From one perspective,this is perfectly understandable. For manylawyers,HIV/AIDS has been and still is,to be viewed primarily as a conditionwhich produces practical problems for those living with it and thus demandspractical interventions and solutions (Haigh and Harris,1990; Burris et al .,1993; Rubenstein et al .,1996). The role of the lawyer,seen in this light,isprincipally one of advisor and advocate – as a person in a position to assist thosewho,because of their HIV+ or PWA 3 status,are confronted with discrimination.To the extent that lawyers have written about HIV/AIDS,their contributionshave therefore tended to be concerned with identifying the legitimacy orotherwise of such discrimination,and of suggesting ways of challenging andseeking redress for it when it occurs.Of course,in the real world of HIV/AIDS and practical lawyering,the worldin which people affected by HIV/AIDS do experience discrimination andcensure and do need advice,representation and protection,this work is of fundamental importance. Indeed,the need to think through the relationshipbetween HIV/AIDS and law in this way,at this level,has never been moreimportant. But it is not enough. In addition to this mode of legal engagementwe need to address other questions about what thinking about HIV/AIDS withinlaw entails both for HIV/AIDS and for law. Doing this requires the problematictransition from thinking as a lawyer about HIV/AIDS to thinking about whatit is to think as a lawyer about HIV/AIDS. Only from this perspective may wehope to understand what we,as lawyers,are doing when we engage withHIV/AIDS – when we construct HIV/AIDS as a problem for law,whetherintellectually or in practice.This is difcult. Not in the sense that the intellectual and analytical challengesits subject raises are substantial (although they are); rather,it is difcult preciselybecause the very thought of treating the subject intellectually and analyticallyis one to which I nd myself resistant. When I reect on HIV/AIDS it is notprimarily as an academic lawyer that I do so. Certainly this role,which createsa particular ‘way of seeing’,has affected the way I think about the problemswhich HIV/AIDS poses for law; but it has not helped me either in my search tounderstand what the relationship between HIV/AIDS and law is or ought to be.In confronting these,more fundamental,problems I nd myself thinking not as 443  a lawyer,but as a man whose understanding of what being gay means has beenformed in the time of HIV/AIDS,as a man who has lost friends to AIDS,as aman who has friends living with HIV/AIDS,and as a man both fearful of,andalso,in some sense emotionally and politically empowered by,HIV/AIDS. Itis within this complex network of associations and paradoxes,and only withinthem,that I seem able to think about the space where HIV/AIDS and lawconnect. Criminal Law(yers) and HIV/AIDS With these prefatory thoughts in mind I turn to the substance of this article. AsI indicated earlier,I am interested in how a training in law (whether of anacademic or practical kind),affects one’s thinking about,and understandingof,HIV/AIDS. I am interested in this because the way in which lawyersconceptualize AIDS is,I believe,central to the way in which the meaning of HIV/AIDS is constructed more generally. The privileged and powerful socialspace which lawyers occupy combined with the way in which they speak andwrite about AIDS – whether that be in the context of legal argument,judgementor critique – has a profound impact on public perceptions of the disease. Unlikeother disciplines in which AIDS has been interrogated,law is one which directlyunderpins an institutional structure through which disputes about the rights andresponsibilities of those who live with the disease are articulated. As such,itprovides both a potent source and an authoritative framework for the publicdiscussion of those rights and responsibilities.In order to explore the issues I have agged here,I am going to talk aboutone area in which lawyers have engaged with AIDS,and where their ‘way of seeing’has had a profound impact on the way in which the illness is understood.That area is criminal liability for the sexual transmission of HIV. First,I look at the way in which the traditional lawyer imagines and represents the processand consequence of transmission and then I explore how imagination andrepresentation distort the context and meaning of transmission in this context.I conclude by suggesting that,where HIV is transmitted during consensual sex,no good purpose is served by deploying the criminal law against those whoinfect others.Within the dominant liberal tradition of criminal law theory the transmissionof HIV is constructed as conduct which raises certain practical problems,for which pragmatic solutions can be found. 4 A summary version of theseproblems,and of the solutions suggested by writers in this tradition,would runas follows. It would start with an assertion that there are occasions wheretransmission occurs,or,according to some,where the risk of transmission arises,which are such that the intervention of the criminal law is justified. This justification is premised on the assumption that the transmission of HIV,orrisking its transmission,may,on those occasions,amount to a public wrong.This general justification,which centres on the harm which transmissionrepresents,is then further categorized as an offence against the person,as anoffence which violates the victim’s bodily autonomy or integrity. Just as with Journal of Social Welfare and Family Law 23(4) 2001444  Criminal law and transmission of HIV a kning or bullet wound,viral transmission amounts to a sufciently adverseinterference with the rights a person has in their body that,provided othernecessary conditions are satised,it warrants condemnation and censure. Theseother conditions,which form the next part of the traditional analysis,are rst,that the accused can be proved to have transmitted the virus (the condition of causation) or placed the victim at risk of infection; and second,that the accusedwas sufciently culpable at the relevant time (the mens rea condition). If allthese conditions are satised,so the inexorable logic of criminal legal doctrineruns,the accused is guilty of an offence and,absent of a recognized defence,may legitimately be punished.This reasoning is familiar to us all; it follows the simple (and simplistic)equation:blame plus harm equals crime. The problem which lawyers areexercised by is what,precisely,is the offence that has been committed whentransmission,or the exposure of someone to the risk of transmission,occurs?There is no doubt in their minds that something worth punishing has happened;but unless the conduct can be squeezed into one of the established categoriesof liability,it cannot be punished without the introduction of a new offence(Dalton,1993:245–50). So onward they march,undaunted. What aboutmurder? In principle,if it can be shown that the death of the victim was causedby AIDS,and that the victim would not have died of AIDS but for being infectedwith HIV by the accused,and it can be established that the accused intended tokill or cause serious bodily harm,then the accused will be guilty of murder.But charging this offence poses enormous problems in those cases whereinfection occurs as the result of sexual contact between the parties. Not only mayAIDS manifest itself many years after infection,during which period the personmay have had multiple sexual encounters with others also resulting in HIVtransmission,but even if it can proved that X was the cause of Y’s death,itis generally extremely difficult to prove the intention necessary to obtain aconviction. It may also be,of course,that the accused has died,or is too ill tostand trial by the time the case comes to court. So if not murder,then perhapsattempted murder? Again,it will be difcult to prove the requisite intention; andthe same problems arise for other possible offences. Those dened in terms of bringing about a consequence (death,or injury) raise significant evidentialdifculties,even if intention or recklessness – the typical mental states whichmust be proved – are established.The answer,so some argue,is to frame an offence in terms of endangerment(Smith,1991). This is what some US jurisdictions have done,and where suchoffences exist,it means that it is not necessary that transmission be proved(thereby eliminating the causation problems) – simply that the accused exposedanother to the risk of infection. 5 Of course this form of offence also raisesdifculties. In the majority of common law jurisdictions,including Englandand Wales,there can be no conviction for an offence against the person framedin terms of exposure to risk,unless the accused was aware of the risk of injury– was subjectively reckless. But,so the traditionalist (who becomes increasinglyconservative with every blind alley he enters) argues:why should the accusedperson’s knowledge of their HIV positive status matter? If they are in fact HIV+, 445
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